A conservative attorney working on behalf of the GOP bolstered his argument to uphold the Defense of Marriage Act (DOMA) with the rationale that gay Americans have become so powerful they do not need special judicial protection as a minority.
House Republicans have enlisted the services of Paul Clement -- a former United States solicitor general and current partner with the Washington law firm Bancroft P.L.L.C -- to fight their $3 million DOMA battle after President Barack Obama decided his administration will no longer defend the anti-gay legislation.
In short, gays and lesbians are one of the most influential, best-connected, best-funded, and best-organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history ... There is absolutely no reason to think that gays and lesbians are shut out of the political process to a degree that would justify judicial intervention on an issue as divisive and fastmoving as same-sex marriage.
United States v. Windsor is the Supreme Court version of Windsor v. United States, in which a New York federal court found that Section 3 of DOMA is unconstitutional and violates the Fifth Amendment. Section 3 defines marriage as "a legal union between one man and one woman as husband and wife" and spouse as "a person of the opposite sex who is a husband or a wife," thus providing unequal protection under the law.
Think Progress blogger Ian Millhiser disputes Clement's argument, writing:
Political victories do not cancel out Americans’ constitutional rights, they augment them, and Clement is simply wrong to suggest otherwise. Ultimately, the sheer absurdity of Clement’s argument exposes why his claims must not prevail at the Supreme Court. The Constitution of Seneca Falls and Selma is also the Constitution of Stonewall. Clement’s argument would deny all three.
Clement has refused to reveal his personal views on same-sex marriage or other politically charged issues at the center of many of his cases. He has claimed that he is motivated solely by his adherence to the law.
“I don’t relish having a case where a gay friend or a sick friend or somebody with a preexisting medical condition is rooting against me,” he told New York Magazine during an interview last March. “On the other hand, it’s just kind of inherent in the nature of the job.”
Clement is currently involved in another controversial case. He is now representing George Huguely V, the University of Virginia lacrosse player convicted of second-degree murder in the death of Yeardley Love. Clement filed Huguely's appeal on Tuesday, the Washington Post notes.
CORRECTION: An earlier version of this story said that Paul Clement was arguing the LGBT community needs judicial protection. He is arguing they do not need it because of their new political power.